www.elsblog.org - Bringing Data and Methods to Our Legal Madness

27 April 2009

Discussing "Bias and the Bar"

Hello ELSblog readers! We are Richard Vining (Assistant professor, University of Georgia) and Amy Steigerwalt (Assistant professor, Georgia State University), and we have been asked to contribute here this week. We're also the authors of a recent study, "Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees" (available at SSRN), that has gotten notice here and elsewhere. In that paper, we assess the influence of several variables on the ABA ratings of nominees to the U.S. Courts of Appeals from 1985-2008. The headline from the paper is that we find, all else being equal, the longstanding conservative complaint of ABA bias against conservative judicial nominees may have merit. Liberals/Democrats are in fact more likely, holding all else constant, to receive a Well Qualified rating than their conservative/Republican counterparts. Response to our study so far has included journalistic reports, scholarly interest, and enthusiasm. The op-ed page of the New York Timesoffered its take, while the Wall Street Journal op-ed page offered an alternative opinion. Amy will also be interviewed by Fox News Channel on Monday (or possibly Tuesday, due to swine flu coverage), with excerpts to appear on Special Report with Brett Baier at 6PM EST. Given the attention the paper has received, we welcomed the opportunity to discuss our methodology and findings with the readers of the ELSblog.

As many of you are probably aware, the American Bar Association’s Standing Committee on the Federal Judiciary has, since the 1940s, evaluated nominees to the federal courts as to their professional qualifications, integrity and judicial temperament. Traditionally, the ABA provided the president with evaluations of potential nominees, and these ratings were then forwarded to the Senate if the nominee was selected by the president. In 2001, President George W. Bush, removed the ABA from the presidential selection process, arguing that the ABA’s ratings were biased against more conservative nominees.

In "Bias and the Bar," we sought to address in a methodologically sophisticated way the frequently heard claim that the ABA is biased against conservatives. While seemingly a straightforward empirical question, the existing evidence was anything but. Many earlier studies contained numerous problems, such as only examining a small subset of nominees or studying only those who were ultimately confirmed. Some of these studies were also funded or supported by conservative organizations, which itself raised red flags. We conceived of this project in the summer of 2008, and believed that determining whether ABA ratings of judicial nominees are actually biased was important given the impending change in presidential administrations in January 2009. Whether John McCain or Barack Obama won the general election, the new president would be faced with a number of pending vacancies on the federal bench as well as the decision of whether to restore the ABA to its traditional role of evaluating nominees pre-presidential selection. It should be noted that when we began this study, we did not necessarily expect to find evidence of any type of bias. We were, however, curious to discover whether George W. Bush’s reasons for removing the ABA from the nominations process had merit.

To answer this question, we analyze the ratings of all nominations to the U.S. Courts of Appeals between 1985 and 2008; our sample consists of over 300 nominations. We present two competing theories, the political theory and professional theory, which reflect the rival views of the ABA's ratings process – i.e., ratings based on ideology vs. ratings based on professional qualifications and/or competence. We collected data on each nomination, including a number of professional history variables (e.g., years as a judge, years as a lawyer [and of what type], and whether the nominee had been a full-time law professor, Supreme Court clerk, or circuit court clerk) as well as indicators of political leanings (e.g., party of appointing president, Giles et al. [2001] ideology scores, and years as a congressional staffer) and demographic characteristics (gender and race). We chose to use an ordered logit model with an ordinal scale which ranges from Not Qualified to Well Qualified and takes into account split ratings by the ABA’s Standing Committee on the Federal Judiciary. We ran two separate models, one containing the party of appointing president and the other the nominees’ GHP scores. Since GHP scores are closely tied to the party identification of the president, the two measures are highly correlated. We ran both models, however, in order to ensure robust findings and to determine whether changes in ideology, rather than just mere partisanship, influenced the ABA’s ratings of nominees. Our models, therefore, “controlled” for all of these factors to determine their independent effects.

Most notably, we find that, all else being equal, Republican/conservative nominees are less likely to receive the ABA’s highest rating than Democratic/liberal nominees. These findings are robust, with very little difference between the results using the appointing party and those employing GHP scores. However, we also find significant support for the professional theory as well: all else being equal, nominees who have more experience as a judge are more likely to be rated highly, as are nominees who have more experience as a government attorney. Former circuit court clerks are more likely to receive higher ratings, while former congressional staffers, possibly due to the overtly partisan and political nature of such positions, are less likely to receive higher ratings. In sum, we find both that the ABA looks to professional experience when evaluating potential nominees to the federal circuit courts, and that conservative nominees receive lower ratings than liberal nominees.

We cannot explain exactly why Democratic/liberal nominees, all else being equal, are more likely to receive a Well Qualified rating. One possible conclusion is clear bias on the part of the ABA, though we believe this is unlikely. Alternatively, there may exist some unaccounted for factor which distinguishes Democratic nominees from Republican nominees. Finally, it is possible that the ABA’s evaluation procedure, while designed to be neutral, contains an inherent liberal bias as to what qualifications or types of experience are valued by the ABA. We believe the disparity may be due to the ABA’s rating criteria of “judicial temperament,” defined by the ABA as including open-mindedness, commitment to equal justice and freedom from bias. We agree that potential federal judges need to be open-minded, of the highest integrity, and unbiased in their approach to each case and litigant. However, if these words are more broadly interpreted to suggest, for instance, that nominees must hold certain views on public policy issues such as affirmative action or equal rights, then ideological biases may permeate the ABA’s evaluation process.

In the future we plan to continue this research by extending our analysis to the nominees to the federal district courts; one possibility is that partisanship and/or ideology may play a more prominent role in the vetting of circuit court nominees given the greater role of these judges in policy-making.

As is the custom here, we are happy to field questions regarding the study, its methodology and findings, and so forth. Thank you for your interest, and the ELSblog for the invitation.

How well do all your predictors together predict what nominees will get the highest rating? (R-squared or equivalent) If there is much unexplained variation -as there usually is in the social sciences-, then there may be confounds with factors you don't(yet) know of.